Beck, J. —
The city of Burlington each year, from 1862 to 1871 inclusive, levied taxes for municipal purposes upon the real and personal property of the Burlington & Missouri River Railroad Company. These taxes remaining unpaid, on the 17th day of September, 1872, this suit was instituted for their recovery. The defendant pleaded the statute of limitation and also set. up that .the taxes are released by Chap. 26, § 9, Acts 14th General Assembly. - By stipulation of the parties the following questions were submitted to the District Court for its decision:
“ 1. Whether all or any part of said, tax, interest or penalty, is .barred, by the statute of limitation or by lapse of time in equity?” ...
“2. What ‘ interest or penalty, if any, plaintiff can claim against defendant. for each or any year upon alleged delin* quenttax?”. ... . . ,
[139]*139“ 3. Whether or not defendant is released from the payment of said tax or interest or penalty claimed by act of April 6th,: 1872, known as 'the railroad tax law, and by the repealing clause, Sec. 13 of said act of April 6th, 1872?” ■ >
The cause was submitted -to the 'District Court upon the .pleadings and the agreed statement of facts, "and the court, thereupon, decided the following propositions of law: ';
“1. The City of Burlington could not maintain a suit at law; for taxes.”
« 2. That the claim for taxes due for the years. 1862-63-64~> 65 and 66, is barred by the statute of limitation.” . ;
“3. That the city had a right to levy the taxes on the property of the railroad company for municipal purposes.” > “ 4. That there is no equitable estoppel' outside of the staU ute of limitation.” '
“ 5. That the city can only recover six per cent interest on the taxes due, and no penalty.”
“ 6. That the act of April 6th, 1872, in as far as it attempts to relieve the railroad company from the payment of munici:, pal taxes then already existing against them, is unconstitutional.” . -
As the result of these legal conclusions, judgment was.rem dered for the defendant.
We will pass upon the questions discussed in the argument of counsel and no others. :
i t \xatiob- • ClJJcll CUipO“ -ration. I. The first question presented by counsel involves the right of the city to maintain ah action to recover taxes right-levied, the defendant insisting that, in no case, will an action lie to enforce the collection of taxes where the law gives any other remedy, unless an action is expressly provided for by statute. This question was presented in Dubuque v. The Ill. Cen. R. Co., 39 Iowa, 56, and Davenport v. The C. R. I. & P. R. Co., 38 Id., 633. It was argued at great length and with great ability by the counsel in those cases, and the subject was completely exhausted.' We gave it most careful and protracted consideration, and our views will be found fully expressed in the opinions delivered in .these cases. . ... .
[140]*140No new light is shed upon the subject by the very able arguments presented in this case. The authorities now cited, without, we believe, a single exception, were presented and considered by the court and counsel upon the former discussion. A repetition of our views and of the arguments which, in our judgment, support them, is not demanded by any change or modifications of our conclusions. Day, J., and myself assenting, expressed the opinion that the action could well be maintained. Miller, Ch. J., was of the opinion that as the question was not made upon the trials of the actions below it could not be argued in this court. He still entertains that opinion and reaches the conclusion that, as the question is not jurisdictional in its character, a position announced in his opinion in Davenport v. C. R. I. P. R. Co., it should have been raised for decision by proper pleading, and, as this has not been done, it is not before us. This view is clearly intimated if not directly expressed in his opinion in the cases just named. Cole, J., adheres to his views expressed in those cases, and dissents from the conclusion of the other members of the court, reversing the decision of the District Court, to the effect that the action can be maintained by the city.
2.-: statute of Umitations. II. The next question discussed by counsel involves the correctness of the court’s ruling to the effect that recovery for all taxes becoming delinquent more than five . , ,, . » years prior to the commencement of the action, is barred by the statute of limitations, which provides that all actions “ founded upon unwritten contracts, * * * * * * * * and all other actions not provided for in this respect” may be brought within five years, and not after-wards. It is argued that as the city is an instrument of the state in exercising the functions pertaining to government, it is to be regarded as the state, and the maxim, nullum tempus oocu/rrit regi, preserves to it all rights of action given to enforce its governmental authority. The learned counsel for plaintiff admit that they are able to cite no authorities in support of their position that the maxim is applicable to the city. They concede that where actions are brought by municipal [141]*141corporations to recover property, or to enforce contracts made with them in their corporate and governmental capacity, the statute may he pleaded as where like actions are brought by natural persons. They observe, and we think accurately, that “ the cases which hold municipal corporations are not exempt from the statute, refer to. rights of property and not to public duties.” * * * * * * * * * . When the city, laying aside its sovereignty, places itself in the position of a mere contracting party and deals with the individual, not as a subject, but as a natural person, it, as we have before said, subjects itself to the laws controlling natural persons.” We think the doctrine of the quotation is not only well expressed but entirely correct.
The right of the city to maintain this action can only be supported upon the ground that the taxes are debts, property held by it in its proprietary character. It appears in this action in that character, claiming to recover on the ground that the defendant is its debtor upon an obligation created by the assessment and levy of the taxes. In the debt thus created, it has a right of property in its proprietary character. The action may therefore be prosecuted and it may therefore recover, despite the legislation releasing the taxes which we have held to be in conflict with the constitution. See Dubuque v. Ill. Cen. R. Co., 39 Iowa, 56.
We conclude that the action, as to all taxes levied for the year 1866, and prior years, is barred. It may be maintained for the taxes of the subsequent years.
3 _,pen_ oipaioorporations. III. We are next to inquire whether the city may recover the penalties prescribed by ordinance upon delinquent taxes; whether recovery is restricted to the taxes, and intei'esf at six Per centum per annum, as held by the District Court. That the city possessed the authority to prescribe, by ordinance, the penalties claimed by plaintiff, and that by ordinance, these penalties were prescribed, cannot be doubted.
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Beck, J. —
The city of Burlington each year, from 1862 to 1871 inclusive, levied taxes for municipal purposes upon the real and personal property of the Burlington & Missouri River Railroad Company. These taxes remaining unpaid, on the 17th day of September, 1872, this suit was instituted for their recovery. The defendant pleaded the statute of limitation and also set. up that .the taxes are released by Chap. 26, § 9, Acts 14th General Assembly. - By stipulation of the parties the following questions were submitted to the District Court for its decision:
“ 1. Whether all or any part of said, tax, interest or penalty, is .barred, by the statute of limitation or by lapse of time in equity?” ...
“2. What ‘ interest or penalty, if any, plaintiff can claim against defendant. for each or any year upon alleged delin* quenttax?”. ... . . ,
[139]*139“ 3. Whether or not defendant is released from the payment of said tax or interest or penalty claimed by act of April 6th,: 1872, known as 'the railroad tax law, and by the repealing clause, Sec. 13 of said act of April 6th, 1872?” ■ >
The cause was submitted -to the 'District Court upon the .pleadings and the agreed statement of facts, "and the court, thereupon, decided the following propositions of law: ';
“1. The City of Burlington could not maintain a suit at law; for taxes.”
« 2. That the claim for taxes due for the years. 1862-63-64~> 65 and 66, is barred by the statute of limitation.” . ;
“3. That the city had a right to levy the taxes on the property of the railroad company for municipal purposes.” > “ 4. That there is no equitable estoppel' outside of the staU ute of limitation.” '
“ 5. That the city can only recover six per cent interest on the taxes due, and no penalty.”
“ 6. That the act of April 6th, 1872, in as far as it attempts to relieve the railroad company from the payment of munici:, pal taxes then already existing against them, is unconstitutional.” . -
As the result of these legal conclusions, judgment was.rem dered for the defendant.
We will pass upon the questions discussed in the argument of counsel and no others. :
i t \xatiob- • ClJJcll CUipO“ -ration. I. The first question presented by counsel involves the right of the city to maintain ah action to recover taxes right-levied, the defendant insisting that, in no case, will an action lie to enforce the collection of taxes where the law gives any other remedy, unless an action is expressly provided for by statute. This question was presented in Dubuque v. The Ill. Cen. R. Co., 39 Iowa, 56, and Davenport v. The C. R. I. & P. R. Co., 38 Id., 633. It was argued at great length and with great ability by the counsel in those cases, and the subject was completely exhausted.' We gave it most careful and protracted consideration, and our views will be found fully expressed in the opinions delivered in .these cases. . ... .
[140]*140No new light is shed upon the subject by the very able arguments presented in this case. The authorities now cited, without, we believe, a single exception, were presented and considered by the court and counsel upon the former discussion. A repetition of our views and of the arguments which, in our judgment, support them, is not demanded by any change or modifications of our conclusions. Day, J., and myself assenting, expressed the opinion that the action could well be maintained. Miller, Ch. J., was of the opinion that as the question was not made upon the trials of the actions below it could not be argued in this court. He still entertains that opinion and reaches the conclusion that, as the question is not jurisdictional in its character, a position announced in his opinion in Davenport v. C. R. I. P. R. Co., it should have been raised for decision by proper pleading, and, as this has not been done, it is not before us. This view is clearly intimated if not directly expressed in his opinion in the cases just named. Cole, J., adheres to his views expressed in those cases, and dissents from the conclusion of the other members of the court, reversing the decision of the District Court, to the effect that the action can be maintained by the city.
2.-: statute of Umitations. II. The next question discussed by counsel involves the correctness of the court’s ruling to the effect that recovery for all taxes becoming delinquent more than five . , ,, . » years prior to the commencement of the action, is barred by the statute of limitations, which provides that all actions “ founded upon unwritten contracts, * * * * * * * * and all other actions not provided for in this respect” may be brought within five years, and not after-wards. It is argued that as the city is an instrument of the state in exercising the functions pertaining to government, it is to be regarded as the state, and the maxim, nullum tempus oocu/rrit regi, preserves to it all rights of action given to enforce its governmental authority. The learned counsel for plaintiff admit that they are able to cite no authorities in support of their position that the maxim is applicable to the city. They concede that where actions are brought by municipal [141]*141corporations to recover property, or to enforce contracts made with them in their corporate and governmental capacity, the statute may he pleaded as where like actions are brought by natural persons. They observe, and we think accurately, that “ the cases which hold municipal corporations are not exempt from the statute, refer to. rights of property and not to public duties.” * * * * * * * * * . When the city, laying aside its sovereignty, places itself in the position of a mere contracting party and deals with the individual, not as a subject, but as a natural person, it, as we have before said, subjects itself to the laws controlling natural persons.” We think the doctrine of the quotation is not only well expressed but entirely correct.
The right of the city to maintain this action can only be supported upon the ground that the taxes are debts, property held by it in its proprietary character. It appears in this action in that character, claiming to recover on the ground that the defendant is its debtor upon an obligation created by the assessment and levy of the taxes. In the debt thus created, it has a right of property in its proprietary character. The action may therefore be prosecuted and it may therefore recover, despite the legislation releasing the taxes which we have held to be in conflict with the constitution. See Dubuque v. Ill. Cen. R. Co., 39 Iowa, 56.
We conclude that the action, as to all taxes levied for the year 1866, and prior years, is barred. It may be maintained for the taxes of the subsequent years.
3 _,pen_ oipaioorporations. III. We are next to inquire whether the city may recover the penalties prescribed by ordinance upon delinquent taxes; whether recovery is restricted to the taxes, and intei'esf at six Per centum per annum, as held by the District Court. That the city possessed the authority to prescribe, by ordinance, the penalties claimed by plaintiff, and that by ordinance, these penalties were prescribed, cannot be doubted. It is, by its charter, clothed with authority to pass such laws and ordinances as may he necessary and proper in carrying into effect the powers granted it. It is clothed, by the charter, with power to levy and collect [142]*142taxes; the authority to prescribe penalties for the non-payment of taxes is necessary and proper to carry into effect the power to levy and collect taxes. Penalties are the common means resorted to as an incentive to the prompt payment of taxes and assessments; the city could properly provide for their imposition. Penalties, when prescribed in the case of delinquent taxes, become a part thereof, and are collected in the same manner as the taxes themselves. They'are regarded in the same light as interest imposed by law on contracts, which becomes a part of the debt and is. collected with it, as a part of it.
No other questions than those above passed upon were discussed or presented by counsel in their arguments. We are called upon to pass upon no others.
The judgment of the District Court, resulting from the conclusions that the city cannot maintain an action for taxes, nor recover the penalties prescribed by ordinance, is
Reversed.